On Point

State v. Niko C., 2013AP1393, District 1, 11/26/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly exercised its discretion in denying Niko’s request to stay the requirement that he register as a sex offender under State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1.

First, the court considered the relevant factors under §§ 301.45(1m)(e) and 938.34(15m)(c) and (16). “Although Niko C. argues that the circuit court placed too much emphasis on the seriousness of the crimes, we cannot say that it erroneously exercised its discretion, especially since Niko C. had the burden of showing by clear and convincing evidence that the mandatory registration requirement should be stayed; it is paradigm [sic] that sentencing courts may give whatever weight the various sentencing factors require and that it is not error for a sentencing court to view the nature of the crime as the overarching consideration. See State v. J.E.B., 161 Wis. 2d 655, 675, 469 N.W.2d 192, 200 (Ct. App. 1991).” (¶17).

The circuit court here did–barely–consider more than just the seriousness of the offense (¶14), but the limited scope of its remarks regarding the relevant factors prompts an observation: Paradigmatic or not, the rule that a court has the discretion to give more or less (or no) weight to a discretionary factor may at some point serve to excuse the court’s failure to consider a factor at all.

Second, the circuit court was not misled to believe that information from the juvenile sex-offender registry never makes it into the public domain given that only law enforcement has access to the registry because the court accepted the possibility that Niko C.’s sex-offender registration could trigger adverse collateral consequences and that it was “cognizant of the implications of what the registration may do or may not do.” (¶18).

Finally, the circuit court did not err by rejecting a postdispostion forensic evaluation showing Niko to be low risk to reoffend or studies Niko submitted showing sex-offender registration for juveniles produces more harm to the juveniles than benefit to the public. The circuit court found Niko C. was a low risk so the additional evaluation was cumulative. Further, whether sex-offender registration for juveniles is a good thing or a bad thing has largely been decided by the legislature–subject, of course, to the discretionary stay in an individual case. (¶¶19-20).

Sure, the legislature thinks registration may be good; but the legislature also permits discretionary stays of the registration requirement. So why aren’t studies about the downside of registration relevant to the court’s discretionary balancing of the pros and cons of registration in the individual case? The court doesn’t really say.

State v. Antonio Reyes-Ortiz, 2013AP268-CR, District 1, 11/26/13; court of appeals decision (not recommended for publication); case activity

Reyes-Ortiz argued there was an insufficient factual basis for his plea to first degree reckless injury because the victim’s injuries rose only to the level of “substantial bodily harm” under § 939.22(38), not “great bodily harm” under  § 939.22(14), as required by § 940.23(1)(a). The circuit court concluded the injuries inflicted by Reyes-Ortiz fell within the “or other serious bodily injury” language in § 939.22(14), relying on LaBarge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976), which held that language expanded the scope of the definition of “great bodily harm.” The court of appeals rejects the claim that LaBarge was overruled by the legislature’s subsequent enactment of the “substantial bodily harm” definition:

¶14      State v. Ellington, 2005 WI App 243, 288 Wis. 2d 264, 707 N.W.2d 907, however, decided long after the enactment of Wis. Stat. § 939.22(38), disproves Reyes-Ortiz’s argument.  Ellington reaffirmed LaBarge’s holding that the “other serious bodily injury” language in Wis. Stat. § 939.22(14) broadens what injuries may fall under the definition of “great bodily harm.”  Ellington, 2005 WI App 243, ¶¶7–8, 288 Wis. 2d 264, 274–276, 707 N.W.2d 907, 912. And this is also indicated by the series of “or”s separating the discrete ways a person may cause “great bodily harm” as defined by Wis. Stat. § 939.22(14). The legislature has not amended the statute after the Ellington decision, and thus, we presume it approves of our interpretation….

There was also sufficient factual basis for the element of utter disregard for human life, where Reyes-Ortiz: (1) drove after drinking; (2) drove in a “crazy” manner while threatening to kill himself and the victim; (3) sexually assaulted the victim; (4) repeatedly punched the victim forcefully enough to break her nose and eye socket, among other serious injuries; and (5) chased after her when she tried to escape. (¶16).

Review of published court of appeals decision; case activity

Issue (composed by On Point)

When the passenger of a car asks a police officer searching the car if he has “got a warrant for that?” before the officer opens a briefcase found in the hatchback of the car, has the driver’s general consent to search the car been limited?

For more factual background about this an interesting and novel issue in Wisconsin, see our prior post. The court of appeals acknowledged the possibility that a driver’s consent to search his or her car might not extend to all objects in the car if, for instance, the objects are distinctively marked as belonging to a passenger, State v. Matejka, 2001 WI 5, ¶36,  241 Wis. 2d 52, 621 N.W.2d 891 (suggesting a “locked” suitcase or briefcase might limit the driver’s authority to consent). It also accepted Wantland’s argument, based on State v. Suazo, 627 A.2d 1074 (N.J. 1993), that the passenger’s objection to the search of the object could circumscribes the scope of the driver’s consent. The problem, said the court, was that Wantland’s statement was not clear and unequivocal enough to assert ownership and express a limitation on the driver’s consent, and the officer was under no obligation to stop and clarify his statements. (¶¶8, 11).

There’s little case law on the situation presented here, and the cases relied on by the state in the court of appeals differ in important ways. United States v. West, 321 F.3d 649 (7th Cir. 2003) (officer found a duffel bag in a car during a search and asked who owned it; defendant said it was his, but never told the officer he couldn’t search it); Payton v. Commonwealth, 327 S.W.3d 468 (Ky. 2010) (defendant asked the officer for a warrant, but when the officer told him his wife consented to the search, the defendant said, “Fine” or “Well, okay.”). There is, though, an obvious analogy to the not-necessarily-helpful standard governing the assertion of the right to remain silent or to have counsel during custodial interrogation: “Although a suspect need not ‘speak with the discrimination of an Oxford don,’ …, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994) (quoted source omitted). Wantland isn’t an Oxford don, but it remains to be seen whether his clearly comprehensible question was enough to limit the driver’s consent.

Review of published court of appeals decision; case activity

Issue (composed by On Point)

Does § 346.65(2)(am)6., which provides that “the confinement portion of a bifurcated sentence imposed under s. 973.01 [for an OWI 7th, 8th, or 9th] shall be not less than 3 years,” require that a bifurcated sentence be imposed?

The court of appeals held that the statute requires a minimum period of confinement if a bifurcated sentence is imposed, but does not mandate imposition of a bifurcated sentence; instead, a court could withhold sentence and place the defendant on probation; or could impose a jail sentence; or, presumably, could impose a bifurcated sentence with three years of confinement but stay execution and place the person on probation. Our prior post characterized the court’s conclusion as a refreshingly exact reading of plain statutory language that–as the court of appeals noted (¶11)–was made even plainer by the surrounding OWI penalty provisions. There was, however, a dissent, which concluded the statute was ambiguous and cited legislative history suggesting the legislature intended to require imposition of a bifurcated sentence with a minimum term of confinement in all cases. Given the dissent–and the fact the issue involves multiple offense drunk driving prosecutions–it’s not surprising the state’s petition for review was granted. Perhaps the legislature will speak before the supreme court does, though. There are two bills pending (AB 180 and SB 174) that would amend the statute so it clearly mandates the imposition of a bifurcated sentence.

Review of a published court of appeals decision; case activity

Issue:  Whether under § 973.015 the circuit court has the discretion to withhold its decision on expungement until after the defendant completes probation?

Wis. Stat. § 973.015 authorizes the circuit court to expunge the record of a defendant under the age of 25 in certain situations. Matasek says the statute gives the circuit court discretion to defer its expunction decision until after the offender successfully completes probation. The court of appeals rejected that interpretation in a published decision. It held instead that “the statute plainly and unambiguously directs courts to exercise their discretion in ordering expunction ‘at the time of sentencing[.]’” 2013 WI App 63, ¶9. Despite the statute’s “plain and unambiguous language,” circuit courts around the state follow a variety of different practices.  Hopefully, the supreme court will clear things up.

Review of per curiam court of appeals decision; case activity

Issue (composed by On Point)

Whether Wis.  Stat. § 343.303, which bars the admission of certain preliminary breath test results in motor vehicle prosecutions, applies to PBT results obtained by Emergency Room staff?

Issue (again, composed by On Point)

WIS JI- Criminal 1185, which is based upon § 885.135(2g)(c), permits a jury to find a defendant was intoxicated at the time of an accident if it is satisfied beyond a reasonable doubt that the defendant’s alcohol level was 0.08 or greater.  The issue appears to be whether a trial court may give this instruction when the only PBT result introduced into evidence failed the statutory and administrative requirements for admissibility under § 343.305.

On Point lacks access to the petition for review.  However, the difficulty in this case seems to stem from the fact that an ER nurse administered a PBT using an instrument that, according to Rocha-Mayo, was not capable of measuring the quantity of alcohol in a person’s blood. Rather, the instrument provided a result designed to aid in diagnosis and treatment of the person tested.   Indeed, the State’s court of appeals brief admits that the device did not satisfy the requirements for admissibility under § 343.305.  So, says Rocha-Mayo, either the PBT result was so unreliable it shouldn’t have been admitted and the jury should not have been instructed that it could presume that he was intoxicated based upon it.  Or, if the State is correct that the instrument was nevertheless reliable, then the PBT result should be barred under § 343.305.  The decision in this case will likely address the reliability of PBTs, a topic recently examined in State v. Richard M. Fischer, 2010 WI 6.  This prior On Point post offers an extensive analysis of Fischer and the idea that the statutory bar on PBT results precludes the admissibility of expert testimony based upon those results.

Review of unpublished court of appeals decision; case activity

Issue (from the state’s Petition for Review)

Whether the court of appeals went beyond the boundaries of an appellate court when it reversed the trial court’s decision based on a sua sponte argument–and subsequent appellate factual determinations–that was never presented to the trial court.

Purtell was on probation for animal cruelty convictions, and as a condition of probation was allowed access to computers only for school or work. After Purtell admitted having a laptop at home, his agent went to his home and removed the laptop. She found files showing females, some appearing to be very young, engaged in sexual acts with animals; after a warrant to search the computer was obtained based on that information, police found child pornography. The sole issue on appeal was whether the agent had reasonable suspicion to search Purtell’s computer for “contraband,” which the state argued included images of animal cruelty. The court of appeals held there was no reasonable suspicion, first because Purtell’s conditions of probation didn’t expressly prohibit him from possessing such images, and, second, because the state pointed to no reasonable grounds to believe there was some other kind of contraband on the laptop, but relied only on “generally suspicious” behavior. (¶¶12-13).

Unable to identify any error in the court’s legal analysis or some novel issue of statewide concern, the state complains that the court’s conclusion about Purtell’s probation conditions was a sua sponte argument and required appellate fact-finding.  This is, to put it charitably, a stretch. Purtell’s brief-in-chief clearly argued–with citations to undisputed evidence in the record–that the agent was never able to identify any contraband, defined as an item he was prohibited from possessing by his probation conditions or by law. The state’s response brief appears to assume his probation conditions included a prohibition on images of animal cruelty, without bothering to understand the record. So, the state fails to understand the record on appeal, blames the court of appeals for its mistake, and gets a chance to be bailed out by the supreme court, which will now review a case that otherwise involves nothing more than the application of well-settled legal principles the to facts of the case.